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Question

Applying to Court for Possession — Accelerated Procedure (England) | Ending a Tenancy (England) | England

Section 21 validity requirements

10 Dec 2021 | 3 comments

With regard to the Section 21 accelerated process, I would be grateful for any views you have on the following:

  1. If an old version of the “How to Rent” booklet was given to the tenant at the outset, would this, if picked up on, invalidate the Section 21 Notice. This concerns the 31st May 2019 version being given when it really should have been that with very slight amendments as published only a few days later on the 3rd June 2019, albeit erroneously still dated May 2019.

2.Furthermore, it seems probable that a deposit was protected with one scheme at the outset of the tenancy within 30 days, and probable that prescribed information was given, but there is no evidence of the latter.  On that basis, no doubt the tenant could defend the proceedings.  Subsequently, due to a change of agency, the deposit was moved from one scheme to another scheme, that is to DPS.  My understanding is that new prescribed information would then have to have been given to the tenant?  Would it be a requirement that the deposit received by the new agent would have to be protected within 30 days of receipt, and once more that prescribed information would have to be given within 30 days of their receipt of this?  If this was the case and done correctly, would this negate any difficulty from not being able to prove what happened originally at the outset of the tenancy in 2019 with regard to prescribed information?

 

Answer

3 Comments

  1. guildy

    In respect of the how to rent guide, you can simply give the current version as it is now before serving the section 21 notice and that will fix any problems (if there were any). We would serve all necessary documents before the section 21 namely EPC, gas safety (the one from commencement and current one), How to Rent and deposit prescribed information (see next). That way, by sending all the information, it won’t be noticeable what is being fixed because everything needed is simply being resent before the notice.

    In respect of the deposit, where a deposit is being unprotected from one scheme, it must be reprotected in the new scheme before it ceases to be protected under the old. Normally, there is a two-month period between a request to unprotect and that happening, but the scheme itself and timings will need to be checked. Please see this article for more information (and also follow the link in that article for more detail).

    The prescribed information is the same (must be given for the new scheme before ceases to be protected under the old scheme) but, for the purposes of section 21, the prescribed information can be given late.

    If the deposit wasn’t protected in time, it will need returning to the tenant in full before serving section 21.

    When sending all the documents again, a minimum 4 days should be allowed for delivery and then serve the section 21 notice afterwards. This ensures all documents were provided “before” the section 21 was served.

  2. APWWPA

    Thank you for your very helpful reply and referral to articles.

    Apologies, I should have made it clearer that I am looking at whether a Section 21 notice already served can be relied upon in view of past events. Here, previous provision of an out of date How to Rent booklet, albeit only by a few days. Similarly, I assume that if the prescribed information wasn’t given at the outset of the tenancy, then irrespective of whether everything is then done correctly when the deposit is transferred from one scheme to the other, including provision of prescribed information in connection with the new scheme, this would still afford a tenant a defence?

  3. guildy

    It’s hard to know regarding the booklet and would depend on the knowledge of any defence if aware of the minor changes. But, technically, it should be the current version as at the time given.

    We think if prescribed information was given for the second protection that would be sufficient for the purposes of section 21 in our view (but not aware of any test case on this particular point).

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